PUBLIC HEARING

Staff report dated November 3, 2004, was presented pertaining to a request for a Conditional Use Permit to operate a performing arts theater and the sharing of required parking spaces on property located at 110 East Walnut Avenue (southeast corner of Harbor Boulevard and Walnut Avenue) (M-G zone) (Categorically exempt under Section 15301 of CEQA Guidelines)

Commissioner Francis recused himself and left the room because he had hired Tony Bushala as a contractor for his restaurant.

Associate Planner Eastman reported that the approval of a Conditional Use Permit addressed two issues. The first issue was to allow a live performing arts theater with food and beverage sales in an M-G zone, and the other was to utilize off-site parking at the Transportation Center to accommodate the on-site parking required for the theater. The theater entrance would be on the east, off the public alley.

The zone on the adjacent properties were changed earlier this year to Specific Plan District. This property is zoned M-G. Notification included tenants in the Fullerton Transportation Center, in addition to the residents within the 300-foot radius, because the use included utilization of the Transportation Center parking.

There will be two assembly areas inside the building. The lobby will have dining tables, where food and beverages will be consumed, and the small platform will be used for casual entertainment. The theater will have 48 fixed seats, which are terraced for ease of viewing. The two areas will be divided by a curtain, not a permanent wall. The areas will not be used concurrently.

The applicant was proposing minor structural modifications to the building, including a bar in the lobby and an emergency exit door on the south side of the building. The building is currently being used as a warehouse, with the front of the building used as an office. Photos of the site were displayed. Mr. Eastman explained that Calvary Chapel was adjacent to the proposed site.

Associate Planner Eastman stated that the building proposed for theater use was built in 1986. The church is in an historic building and has a CUP that was modified earlier this year, as part of the adjacent condominium project, so that the church can use the parking in the Transportation Center. The theater will operate primarily on Saturdays, and perhaps on some weekday evenings. The Commission discussed modifying a condition to deal with the hours of operation on Sunday.

An aerial photo was displayed. The municipal code requires the proposed use to have a minimum of 18 parking spaces and the office/warehouse site will have eight on-site parking spaces. The church operates Monday through Saturday, with approximately 50 people attending in the evenings, and approximately 150 people on Sundays. The Transportation Center has 151 parking spaces, with an additional 40 spaces to be created by restriping existing red painted curbs. When the church CUP was modified, the 40 spaces were not taken into consideration.

Staff recommended approval, subject to the 18 conditions of approval. Associate Planner Eastman informed the Planning Commission that after the staff report was prepared, two points were clarified.

The applicant proposed a Type 40 license to only sell beer, not wine. The applicant would like to eventually sell wine, however ABC has told the applicant that it was not currently possible. The other point was that one condition dealt with the hours of operation on Sundays so that it does not conflict with the church. The applicant would like to operate on Sundays when the church is not operating.

Commissioner Price asked if there had been any complaints or parking problems with the CUP for Calvary Chapel. Associate Planner Eastman stated that there had been no complaints although the church was still using their parking lot. He also stated that the Olson project had submitted grading plans for the future condominiums.

Commissioner Price asked if the applicant was interested in operating on a Sunday, would staff condition it so that it would not start before a certain time of day. Associate Planner Eastman stated that it would be modified so it would operate outside of the churchs hours of operation, which concludes services at 8 p.m.

Commissioner Savage asked if another theater could use the same CUP if the current applicant leaves. Associate Planner Eastman said that as long as the new operator would abide by the same conditions and would have the same set up and seating, they could use it. Some modifications could be reviewed administratively, such as moving the location of the bar, etc. If there would be any significant modification, it would be brought before the Planning Commission for review.

Commissioner Bailey asked staff how many parking spaces would be required for the church attendance of 150. Chief Planner Rosen answered that approximately 50 spaces would be required. Commissioner Bailey asked if the gravel area west of Harbor and north of Walnut was railroad right-of-way or City property. Chief Planner Rosen answered that, to his knowledge, it is railroad right-of-way.

Commissioner Griffin asked about specific hours the applicant was proposing for performances on Sundays. Associate Planner Eastman stated that the applicant should speak to this since he was still working out details with various non-profit groups regarding use.

Chairman Stopper asked if the two different requests were dealt with in one CUP, and Associate Planner Eastman answered affirmatively. Chairman Stopper also asked if the Fire Department had reviewed the plans. Associate Planner Eastman said that it was submitted for plan check and the Fire Marshal and the Building Division were reviewing it for occupancy. The plans had been reviewed at the conceptual level.

Chairman Stopper asked what the code requirements were for parking. Associate Planner Eastman explained that fixed seating and movable seating have different requirements. With fixed seating, the parking requirement is one space for every three seatsthus the performance area would need 16 spaces. Movable seating requires one space for every 35 square feet of space, and there was a total of roughly 600 square feet in the lobby area, which would be 18 spaces. The parking requirements also take the support staff into account.

Chairman Stopper discussed Condition #15 that states no specific hours of operation had been proposed. Associate Planner Eastman stated that it was the applicants responsibility to schedule events at a time when the parking could sufficiently accommodate the need. Staffs primary concern was that sufficient parking would be available for the Transportation Center. Chief Planner Rosen reiterated that the parking would be along the south side of the tracks, and the high demand was normally for the north side of the tracks.

Chairman Stopper felt that the Fullerton Transit Village condominium project would have an impact on the parking situation. Staff reported that each tenant would have two parking spaces, with a total of 83 spaces provided on the north side of Truslow, which will be available to the public.

Associate Planner Eastman said that the Olson Company was considering allowing on-site parking permits (monitored by their parking enforcement) to utilize guest parking when tenants are at work. It currently was not a commitment, but they are considering it. Chief Planner Rosen said that there was no assumption about available parking on Walnut Avenue. The Planning Commission could add hours of operation, however, staff did not feel it was necessary.

Chairman Stopper asked about a proposed parking structure west of Harbor and south of the railroad tracks. Chief Planner Rosen stated that the proposal had not gone forward; the focus is now on the north side of the Transportation Center.

Chairman Stopper asked about underground utilities. Staff replied that it was handled in Condition #18, and will be based on the City Code requirements.

Commissioner Griffin asked about Condition #6 regarding loitering. He asked if the applicant would be providing an area for smoking during intermission.

Associate Planner Eastman was primarily concerned with loitering, however, staff would approve a designated outdoor area for smoking if it is designed to be sensitive to the adjacent condos.

Public hearing opened.

Brian Newell, applicant, introduced himself and his partner Jim Book. He explained that he and Mr. Book grew up in Fullerton and attended Troy High School. Jim had taught theater at Fullerton College for 15 years. Mr. Newell had worked at Plummer Auditorium, and both Mr. Book and Mr. Newell have been assistant teachers in the drama program at Troy High School. He explained the beginning of the Maverick Theater in the Block of Orange. They have encouraged younger generations to be involved, and have had many different productions. They want to continue to encourage college and high school students to volunteer to perform and provide technical support. When schools use the theater, they rent and run the entire production. He is considering a murder mystery theater experience. He also discussed a late night comedy improvisation that they currently provide for an 18 20-year-old crowd. He gave a Powerpoint presentation showing pictures of previous productions at the Maverick Theater. Mr. Newell also presented the architects renderings of Art Deco designs proposed. The Santa Ana based architect, Joseph Musal, has designed theaters for the last 60 years. Mr. Newell said that he wanted to bring old Hollywood glamour to Fullerton and wanted to culturally influence new generations. He is also concerned with parking and did not want to be limited to just a few nights a week. He said he would abide with the conditions, but asked for freedom to grow.

Commissioner Hart asked if Mr. Newell had any concerns with the conditions and where the stage design manufacturing would be worked on. Mr. Newell had questions with using the 200 parking spaces. He would like to have matinees on Sunday. His evening programming would not start until after 8 p.m. He stated that the stage designs would be built on site and will use the back loading area.

Commissioner Griffin asked if he has had experience serving alcohol. Mr. Newell stated that they did not have a license to sell alcohol because the Block of Orange did not want a conflict with the restaurants there. Commissioner Griffin also asked if there was a good relationship with the Fire and Police Departments in the City of Orange, and Mr. Newell answered affirmatively.

Commissioner Griffin asked what time on Sunday was preferable for matinees and Mr. Newell answered that between 2 4 p.m. were the usual matinee hours for the productions. Some productions need a three-hour block of time. Commissioner Griffin also asked about screening a smoking area. Mr. Newell stated that the side door exits to the parking lot, and he thought the front of the building would be the only place for smoking.

Commissioner Bailey suggested that the exit on the south side of property led to the trail leading to a park setting that will soon be improved and that could be a possible smoking area. He also asked if the number of exits have been approved. Mr. Newell stated that Mr. Thompson of the Fire Department had reviewed it.

Chairman Stopper asked if the support staff were volunteers and if he was considering live broadcasts on radio or television. Mr. Newell said that he had not considered it yet, but was open to suggestions.

Tony Bushala, complimented staff on the presentation and was happy to see the development in downtown Fullerton. He felt that the parking on Walnut had a peak demand in the morning and afternoon. On the weekends and evenings, the parking was readily available. He spoke of the 9 a.m. and 11 a.m. Sunday services at Calvary Chapel. He did not feel that commuter parking would interfere with the theater use.

Joe Huffard, teaches theater arts at Troy High School shared how Mr. Newell had helped him over the last years. He attended Troy High School with Mr. Newell and Mr. Book and trusts them; he felt comfortable working with them at the Maverick. He felt that they are ethical and a wonderful influence on youth in the community.

Commissioner Savage indicated that he had called the Block of Orange and spoke with the rental office, and they spoke well about the Maverick Theater. He also received a glowing report about the operation, Mrs. Newell and Mr. Book.

Commissioner Griffin felt it was an excellent project and he would be supporting it. He shared concerns about parking availability in the future. He believed this use will not negatively impact the adjacent uses in the future. He was concerned with the hours of operation on Sunday. He suggested that condition #3 in the staff report should be changed so that the hours of operation would be reviewed by the Director of Development Services.

Commissioner Bailey stated that the church use would not even impact one-half of the total spaces available. He did not see any reason for limiting uses on Sunday and felt that condition #3 should be removed entirely.

Commissioner Price agreed with what Commissioner Griffin suggested, giving the Director of Development Services the flexibility if there are concurrent uses and not a need for limitation of use. Chief Planner Rosen discussed the possibility of church growth and back-to-back performances at the theater, and the possibility of overlapping parking used by both groups.

Commissioner Bailey asked staff to be lenient in deciding and he supported Commissioner Griffins recommendation.

Chairman Stopper discussed the dynamics of parking in downtown, the various volunteer organizations in the city, the theater and arts in the city. He supported the project and looked forward to attending a performance.

The title of Resolution Number PC-04-40 APPROVING a Conditional Use Permit to permit a Performing Arts Theater and the use of off-site public parking for required parking spaces on property located at 110 East Walnut Avenue was read and further reading was waived. MOTION by Commissioner Griffin, seconded by Commissioner Savage, and CARRIED by a 6-0 vote, with Commissioner Francis abstaining, that said Resolution be ADOPTED AS AMENDED with the following revision:

Condition #3 be deleted and restated to say that prior to a Certificate of Occupancy for theater use, the applicant shall file an Hours of Operation and Parking Plan with the Director of Development Services for his review and approval. The plan shall ensure that theater parking does not occur during the Fullerton Transportation Centers peak hours of demand.

Commissioner Bailey asked if the applicant could respond if he was still in agreement with the conditions, as revised.

Public hearing reopened.

Brian Newell stated that he felt it was a fair and safe change and he had no problems with it.

Staff report dated November 10, 2004, was pertaining to a request for a Conditional Use Permit to expand and modify an existing car rental agency which would include more than 10 rental vehicles on site, including cars and recreational vehicles, on property located at 824 E. Commonwealth Avenue (south side of Commonwealth Avenue between approximately 124 and 244 feet west of Linwood Avenue) (C-1 zone) (Categorically exempt under Section 15332 of CEQA Guidelines)

Assistant Planner Kusch reported that the business was located in an area zoned C-1, Limited Commercial. He displayed photographs of the site, and identified on one of the photos that the parking spaces along the street frontage are located in what is considered a required landscaped setback. The same photo shows an unenclosed trash dumpster at the entry gate. The site also contains a temporary storage container which the Municipal Code temporarily allows during construction activities. Assistant Planner Kusch said that one of the conditions of approval would be the removal of this storage container. He explained that a portion of the rear of the property would be used to wash and prepare vehicles. In order to allow for the car wash activity, the property will be required to comply with applicable National Pollutant Discharge Elimination System (NPDES) requirements, including the submittal of a Water Quality Management Plan (WQMP). The Water Engineering Department noted that if they intend to dump sewage from the RVs, appropriate permits would be required for a sewer dump station.

Assistant Planner Kusch further explained that the Municipal Code required car rental agencies with more than 10 rental vehicles to receive approval of a Conditional Use Permit (CUP). The business license originally issued in 2000 for the car rental business was for fewer than 10 rental vehicles. In January and February 2004, the Development Services Departments Code Enforcement Division received a complaint concerning parking and unloading of rental vehicles in front of a residence near the subject property. In response to the initial complaint, a Code Enforcement Officer visited the subject property and witnessed more than 10 rental vehicles on site. The on-site manager was subsequently told, and later reminded, that they would need to apply for a CUP to continue to operate with more than 10 rental vehicles. In March, the applicant met with staff to discuss the CUP process. Staff was told by the applicant that an application would be forthcoming. In April, two administrative citations, including a final notice, were issued advising the applicant of the need to submit a CUP application and fees. Otherwise, the Code Enforcement case would be referred to the City Attorney. A three-week reprieve was requested by the applicant and granted by staff. In May, the applicant submitted an application that was determined incomplete by staff. Between June and July, three administrative citations were issued for non-compliance. During this time, the Code Enforcement staff visited the site twice. A Notice of Violation was issued for banners without permits, unpermitted fence construction and building alterations. In August, the Code Enforcement Case was referred to the City Attorneys Office. In September, the current CUP application was submitted.

The site plan was displayed and reviewed. Mr. Kusch noted the Municipal Code does not allow tandem employee or customer parking spaces, which are depicted on the site plan at the southwest portion of the property. He showed on the site plan the suggested location for 12 required parking spaces. Staff is also recommending a 10 foot landscape setback (which is a requirement of the C-1 zone), which will require the removal and relocation of the existing wrought iron fence that fronts the property. Staff is also recommending striping and delineating the parking area to separate parking for employees and customers from the rental vehicle parking. Staff does not have a limitation of the quantity of rental vehicles. Staff recommends that the rental vehicles be confined to the rear of the property. Mr. Kusch also stated that the existing three foot block wall will need to be increased in height to a minimum of six feet for the portions adjacent to residential uses, including existing apartments and a single-family residence.

Assistant Planner Kusch recommended that to avoid additional complaints, all loading and unloading of vehicles should be done on site. The initial complaint was generated because of double-decker transport trucks stopping to unload along Commonwealth, thereby blocking a portion of the street. Staff recommends that they limit the size of transport vehicles or find other methods of transporting vehicles to the property.

Assistant Planner Kusch stated that residents within a 300-foot radius were notified of this hearing. After the printing of the staff report, a complaint letter was received and a copy was given to the Commission at this meeting.

Staff is not confident that the applicant will adhere to the conditions of approval. Staff recommends that the Planning Commission review this operation after six months to see if they satisfactorily comply with the 19 conditions. Mr. Kusch advised that Tom Fulton, the Code Enforcement Case Officer, was in the audience and available for questions.

Commissioner Savage asked Mr. Kusch to identify on the aerial photo the residence that submitted the complaint letter. Mr. Kusch identified the location.

Public hearing opened.

Amjad Hussein, applicant, identified himself as the chief financial officer for Rent for Less and stated that it has operated at this location for the last four years. He said that they have operations in 14 different locations in six different cities. He stated that the complaint letter addresses current problems. He felt that if the CUP was issued, the problem would be gone. He said that they are willing to comply with all 19 recommended conditions of approval.

Public hearing closed.

Commissioner Francis stated that he has witnessed the unloading of vehicles and asked what staff recommends. Chief Planner Rosen stated that staff recommends in Condition #15 all unloading of vehicles be conducted on site.

Commissioner Price commended Mr. Kusch on the handling of these issues in the conditions of the CUP and he supported it.

Commissioner Bailey concurred and commended staff on an outstanding job. He supported the staff position and would like to review it in six months.

Chairman Stopper stated that this was not a typical staff report. There was a negative history, and he wondered if there was a communication issue or requirements were not understood. He cautioned the applicant that the Planning Commission had reservations; however, they always try to give the benefit of the doubt and wanted to support the applicant. He supported reviewing this operation in six months.

Commissioner Savage agreed and supported the project. He did not want to see the same behavior repeated. He wanted to review in six months, and hoped to see an improvement.

Commissioner Francis asked what the course of action would be in six months if no changes were made. Chief Planner Rosen stated that a public hearing could be set to revoke or modify the CUP. The public hearing would be noticed and, if an investigation found that they were not in compliance with the conditions, it would be reported to the Planning Commission, who could decide if the CUP should be revoked. Typically, a hearing is done first and then the revocation hearing is set.

Commissioner Bailey asked Chief Planner Rosen if the Planning Commission did not recommend approval for a CUP, would the applicant have to scale the business back until the requirements were satisfied. Chief Planner Rosen answered that he would have to check with the City Attorney to review the actions that have been taken for compliance, and if a time for the abatement period has been set with 30 days to comply.

Commissioner Hart was concerned with approving a CUP when they are not abiding with the business license. Chief Planner Rosen stated that three misdemeanor charges have been stayed pending the outcome of this CUP approval process. He also stated that this could be an enforcement tool, if there are continued problems with the business operation.

Commissioner Price mentioned that there were three conditions that state a 30-day requirement for compliance. He felt it would be reasonable to review the compliance status of these recommended conditions within 30 days.

Commissioner Bailey commented that the first violation was ten months ago, they waited and have not complied after many citations.

Commissioner Francis felt that the applicant should have begun complying immediately after notification. He discussed the amount of time city staff and the City Attorney has spent on this case.

Chief Planner Rosen suggested an amended condition that staff report back to the Planning Commission within 30 days and that would be the first check of compliance. There are three conditions that require compliance within 30 days. The Planning Commission could set a hearing earlier if they did not want to wait six months.

Chairman Stopper agreed with the amended condition because of the applicants history of non-compliance.

Commissioner Savage reminded the Planning Commission that the applicant agreed with the conditions and said he would comply with them.

Commissioner Price agreed with Commissioner Savage and stated that the three misdemeanors that are stayed can be used as a tool for compliance.

Commissioner Bailey suggested reviewing the operation in three months. He felt that that a review in six months was too long.

Commissioner Hart agreed with Commissioner Bailey and felt that three months was a sufficient amount of time.

Chief Planner Rosen asked if Commissioner Bailey wanted a noticed public hearing in order to revoke, and Commissioner Bailey answered negatively. Chief Planner Rosen reminded him that the normal procedure was to notice the hearing at which the Planning Commission would be reviewing the conditions of approval. If there was intent to revoke the CUP, it would be set at the three month hearing, unless the actions were so egregious and harmful to public health and safety and welfare, that a hearing would need to be set immediately.

Commissioner Francis felt the applicant should have six months to comply, with a review in 30 days.

Commissioner Bailey asked if the applicant has not complied, then would they set a public hearing. Chief Planner Rosen answered affirmatively and it would be placed as an action item for the Planning Commission to set a public hearing, if necessary.

The title of Resolution Number PC-04-41 APPROVING a Conditional Use Permit for the operation of a Car Rental Agency which would include more than 10 rental vehicles on site, including cars and recreational vehicles, on property located at 824 E. Commonwealth Avenue was read and further reading was waived. MOTION by Commissioner Bailey, seconded by Commissioner Francis, passed unanimously by voting members present that said Resolution be ADOPTED AS AMENDED with the following revision: compliance with the 19 conditions as stated in the staff report and condition #19 amended as follows: The Planning Commission shall review the operation in approximately 30 days to determine whether satisfactory progress is being made to comply with the conditions of approval. A noticed public hearing will be set for six months to review for compliance with all the conditions of approval.

Commissioner Savage asked if the applicant was in agreement with the amended Condition #19.

The public hearing was reopened.

The applicants attorney, Ali Parvaneh, addressed the Planning Commission and stated that he was hired because the applicant was in a communication gap and the applicant is in agreement and will comply with all conditions presented and No. 19 as amended.

Public hearing closed

OTHER MATTERS

COMMISSION/STAFF COMMUNICATION

Commissioner Savage discussed a local restaurant with improper signage and Commissioner Francis suggested filling out a Neighborhood Enhancement Team (NET) card. Staff stated that they would provide cards to the Commissioners.

Commissioner Bailey stated that the downtown wireless program is moving along, the official kickoff will be in January, and it should be live for First Night.

Staff commented on the recent community meetings and stated that there will be more meetings because of the interest shown by the community.

Senior Planner Mullis stated that concept plans show that Hope University will be doubling their student enrollment and will be adding new dorms, and demolishing some current facilities. The application will be submitted in 2005.

REVIEW OF COUNCIL ACTIONS

Chief Planner Rosen gave a brief report on recent City Council meetings.

PUBLIC COMMENTS

There was no one from the public who wished to speak on any matter within the Commissions jurisdiction.

AGENDA FORECAST

The next meeting of the Fullerton Planning Commission will be December 15, 2004, at 7:00 p.m.

ADJOURNMENT

There being no further business, the meeting was adjourned at 9:24 p.m.